United States v. Gonzales

Decision Date26 August 1997
Docket NumberNo. 96-20954,No. 96-20637,96-20637,96-20954
Citation121 F.3d 928
PartiesUNITED STATES OF AMERICA, Plaintiff-Appellee, v. ENRIQUE GONZALES, JR.; ENRIQUE GONZALES, SR.; and WILSON OLIVARES, a/k/a Olivares Wilson, Defendants-Appellants. UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS ENRIQUE GONZALES, JR., Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

For UNITED STATES OF AMERICA, Plaintiff -Appellee: Paula Camille Offenhauser, Assistant U. S. Attorney, Julia Bowen Stern, US Attorney's Office, Eric Darnell Smith, US Attorney's Office, Houston, TX.

For ENRIQUE GONZALES, JR, Defendant -Appellant: Roland E Dahlin, Federal Public Defender, H Michael Sokolow

For ENRIQUE GONZALES, SR, Defendant -Appellant: John Richard Donahue

For WILSON OLIVARES, Defendant - Appellant: Alan L Winograd, Houston, TX.

Before POLITZ, Chief Judge, HIGGINBOTHAM and SMITH, Circuit Judges.

JERRY E. SMITH

OPINION

JERRY E. SMITH , Circuit Judge:

Enrique Gonzales, Sr., Enrique Gonzales, Jr., and Wilson Olivares challenge their convictions of participation in a drug trafficking conspiracy. We affirm.

I.
A.

A drug trafficking task force, including officers of the Department of Public Safety, the Bureau of Alcohol, Tobacco and Firearms ("ATF"), and the Houston Police Department learned of a potential drug dealer from a confidential informant, Jose Benvides, who advised officers that a man named "Doni" had offered to sell him a large quantity of cocaine. Relying on this information, the task force planned a sting. Benvides was instructed to arrange the transaction, advising Doni that his "cousin" wished to purchase a large quantity of cocaine. An undercover officer, Oscar Garcia, posed as Benvides's cousin. Benvides and Doni agreed that Garcia would purchase two kilograms of cocaine from Doni for $ 44,000, and Doni instructed Benvides and Garcia to meet him at a bar to execute the transaction.

After Benvides and Garcia arrived at the designated location, Doni introduced himself to Garcia and asked to see the money. Garcia displayed $ 42,000 in "show money" that he had obtained for the sting. After satisfying himself that the money was sufficient, Doni placed a phone call to his associates and confirmed the deal. Doni's associates returned the call approximately one hour later, and Doni directed Garcia to the location of the final transaction. Garcia convinced Doni to ride with Benvides, then notified the task force of their destination.

When the three men arrived at their destination, a warehouse, Benvides was taken inside to verify that the cocaine was present. Meanwhile, Garcia remained outside and met the surveillance team, arranging a final "bust signal" and handing off the "show money." Shortly thereafter, Benvides called to confirm the presence of the cocaine, and Garcia approached the warehouse.

Before Garcia could enter, Doni asked to see the money again. Having already handed off the money, Garcia stalled and demanded to see the drugs first. Doni was adamant, however, and eventually Garcia instructedBenvides to retrieve the money from his car, knowing Benvides would find nothing. The situation grew volatile. During this exchange, Doni realized that Garcia was carrying a pistol and became highly agitated, despite Garcia's reassurances. Finally, when Doni realized that Benvides could not find the money, he began to retreat into the warehouse. Garcia followed Doni, giving the "bust signal" as he approached the warehouse door.

As Garcia entered the warehouse, he observed Doni gesturing to someone inside, and he saw Olivares standing beside a pool table. Olivares immediately reached down beside the pool table and Garcia, fearful that Olivares was reaching for a weapon, drew his revolver, and identified himself as a police officer. Olivares did draw a weapon, but replaced it inside the table when confronted by Garcia.

Simultaneously, the surveillance team entered the warehouse and secured the premises, handcuffing everyone inside. While securing the premises, one member of the surveillance team, Officer Hans Meisel, discovered a loaded machinegun jutting out from a missing panel in the pool table. 1

The officers learned that Olivares was living in the warehouse and requested permission to search. Olivares signed a consent form, and the officers proceeded to search the warehouse for the drugs. Benvides explained that Gonzales, Sr., had escorted him upstairs to view the cocaine, and he directed the officers to the location. The drugs had been moved, however, and a narcotics detection dog was called in to locate the drugs, which were found inside a brown paper bag that had been placed inside a bag of concrete. Fingerprint testing subsequently revealed that a palm print on the brown paper bag matched those of Gonzales, Jr. The officers confiscated 1,998.4 grams of cocaine.

As Meisel was leaving with the cocaine, Gonzales, Jr., mocked him, saying "we made you work for that s , you all thought you weren't going to find it," and claiming "all of that is mine." In response to a query by Meisel, Gonzales, Jr., explained that he was referring to "the coke and the gun."

B.

The appellants indicted on charges of possession with intent to distribute in excess of 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(1)(1) and 841(b)(1)(B); conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846; using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and unlawful possession of a machinegun, in violation of 18 U.S.C. § 922(o). They filed motions to suppress the cocaine, and Gonzales, Jr., moved to suppress his incriminating statements. At the suppression hearing, Meisel testified that Gonzales, Jr., had made his incriminating statements voluntarily and without interrogation, and Garcia corroborated Meisel's account. The district court denied the motions to suppress.

The jury convicted on all counts. The district court denied motions for judgments of acquittal. The government gave notice that it intended to seek the thirty-year sentence enhancement for using and carrying a machinegun during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c). The defendants objected, claiming that this aggravating factor had not been included in the indictment and could not be considered in the sentencing decision. The defendants claimed they were informed at arraignment that the maximum penalty under § 924(c) was five years in prison, thus the sentence enhancement would offend due process. The district court overruled the objections and adopted the presentence reports, sentencing each defendant to 78 months on counts one, two, and four, to be served concurrently, and 360 months on count three, to be served consecutively, for a total sentence of 438 months' imprisonment.

II.

Defendants argue that the evidence was insufficient to support their convictions for conspiracy, possession with intent to distribute, and the firearms offenses. We disagree.

A.

In a sufficiency challenge, we view the evidence in the light most favorable to the verdict and afford the government the benefit of all reasonable inferences. See United States v. Dean, 59 F.3d 1479, 1484 (5th Cir. 1995), cert. denied, 516 U.S. 1082, 133 L. Ed. 2d 742, 116 S. Ct. 794 (1996). The verdict must be affirmed if a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See United States v. Walters, 87 F.3d 663, 667 (5th Cir.), cert. denied, 117 S. Ct. 498 (1996); Dean, 59 F.3d at 1484.

B.

Olivares argues that the evidence was insufficient to prove that he participated in the conspiracy to distribute cocaine, nor did it prove that he aided and abetted the substantive offense of possession with intent to distribute cocaine. We disagree.

1.

In order to sustain a conviction for conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, the government must prove three essential elements: (1) that an agreement existed to violate federal narcotics laws; (2) that the defendant knew of the existence of the agreement; and (3) that the defendant voluntarily participated in the conspiracy. See United States v. Garcia, 86 F.3d 394, 398 (5th Cir. 1996), cert. denied, 117 S. Ct. 752 (1997); United States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir. 1993); United States v. Maltos, 985 F.2d 743, 746 (5th Cir. 1992).

The essential elements of conspiracy may be established by circumstantial evidence. See United States v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994); Cardenas, 9 F.3d at 1157. "The government need not prove the essential elements by direct evidence alone. The agreement, a defendant's guilty knowledge and a defendant's participation in the conspiracy all may be inferred from the 'development and collocation of circumstances.'" Maltos, 985 F.2d at 746 (citations omitted); Ayala, 887 F.2d 62, 67. Therefore, we have consistently held that the jury may infer the existence of a conspiracy from the presence, association, and concerted action of the defendant with others. See Cardenas, 9 F.3d at 1157; Ayala, 887 F.2d at 67.

Nevertheless, Olivares claims that the evidence established only his "mere presence" at the crime scene, not his participation in the narcotics conspiracy. This argument is unavailing.

Granted, "it is well established that mere presence at the crime scene or close association with conspirators, standing alone, will not support an inference of participation in the conspiracy." Maltos, 985 F.2d at 746 (emphasis added). It is equally settled, however, that "presence or association is a factor that, along with other evidence, may be relied upon to find conspiratorial activity by the defendant."

Cardenas, 9 F.3d at 1157 (emphasis added). 2 Olivares's presence at the crime scene, corroborated by physical evidence discovered there and the testimony of the arresting officers, was sufficient to support the inference that...

To continue reading

Request your trial
142 cases
  • Cordova v. Johnson
    • United States
    • U.S. District Court — Western District of Texas
    • February 4, 1998
    ...that would have revealed that a key prosecution witness had a criminal record and history of mental problems); United States v. Gonzales, 121 F.3d 928, 946 (5th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 726, 139 L.Ed.2d 664 (1998); Spence v. Johnson, 80 F.3d at 994; and Kopycinski v.......
  • Murray v. Earle
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 31, 2005
    ...496 U.S. 292, 296, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990)(citing Miranda, 384 U.S. at 444, 86 S.Ct. 1602); United States v. Gonzales, 121 F.3d 928, 939 (5th Cir.1997)("It is axiomatic that `the Fifth Amendment privilege against self-incrimination prohibits admitting statements given by a su......
  • U.S. v. Runyan
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • April 18, 2002
    ...the outcome of the trial would have been different if the suppressed evidence had been disclosed to the defendant. United States v. Gonzales, 121 F.3d 928, 946 (5th Cir.1997) (citing United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). However, a defendant see......
  • U.S.A v. Scroggins
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 4, 2010
    ... 599 F.3d 433 UNITED STATES of America, Plaintiff-Appellee, v. Ernie Bradford SCROGGINS, also known as, Gangsta, ... actual or apparent authority. United ... States v. Gonzales. 121 F.3d 928, 938 (5th ... Cir.1997). Only the first element is at ... issue in the present ... ...
  • Request a trial to view additional results
3 books & journal articles
  • Federal criminal conspiracy.
    • United States
    • American Criminal Law Review Vol. 42 No. 2, March 2005
    • March 22, 2005
    ...accomplishment of a common purpose" (quoting United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir. 1994))); United States v. Gonzales, 121 F.3d 928,935 (5th Cir. 1997) ("[A] defendant's guilty knowledge and participation in the conspiracy all may be inferred from the 'development and coll......
  • Federal criminal conspiracy.
    • United States
    • American Criminal Law Review Vol. 43 No. 2, March 2006
    • March 22, 2006
    ...a jury may presume that defendant is a knowing participant in a conspiracy when he acts in furtherance of it); United States v. Gonzales, 121 F.3d 928, 935 (5th Cir. 1997) (asserting the defendant's presence at crime scene in conjunction with physical evidence found at scene and testimony o......
  • Federal criminal conspiracy.
    • United States
    • American Criminal Law Review Vol. 44 No. 2, March 2007
    • March 22, 2007
    ...a jury may presume that defendant is a knowing participant in a conspiracy when he acts in furtherance of it); United States v. Gonzales, 121 F.3d 928, 935 (5th Cir. 1997) (asserting the defendant's presence at crime scene in conjunction with physical evidence found at scene and testimony o......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT